Target Of Obama-Era Rendition Alleges Torture

Target Of Obama-Era Rendition Alleges Torture

by

Scott Horton

During the 2008 presidential campaign, Barack Obama sharply
criticized the Bush Administration's extraordinary renditions program.
"To build a better, freer world, we must first behave in ways that
reflect the decency and aspirations of the American people," he wrote in Foreign Affairs.
"This means ending the practice of shipping away prisoners in the dead
of night to be tortured in far-off countries, of detaining thousands
without charge or trial, of maintaining a network of secret prisons to
jail people beyond the reach of law." But Obama was consistently
careful never to commit to ending the practice of rendition entirely.
When the issue flared shortly after his inauguration, senior
administration officials were quick to say that abuses including
torture would end, but that "ordinary" renditions - the spiriting away
of suspects from other countries without going through the formal
process of extradition -- would be continued in a cleaned-up form. Now
in a federal court in suburban Washington, a case is unfolding that
gives us a practical sense of what an Obama-era rendition looks like.

Raymond Azar, a 45-year-old Lebanese construction manager with a
grade school education, is employed by Sima International, a
Lebanon-based contractor that does work for the U.S. military in Iraq
and Afghanistan. He also has the unlikely distinction of being the
first target of a rendition carried out on the Obama watch.

According to court papers, on April 7, 2009, Azar and a
Lebanese-American colleague, Dinorah Cobos, were seized by "at least
eight" heavily armed FBI agents in Kabul, Afghanistan, where they had
traveled for a meeting to discuss the status of one of his company's
U.S. government contracts. The trip ended with Azar alighting in
manacles from a Gulfstream V executive jet in Manassas, Virginia, where
he was formally arrested and charged in a federal antitrust probe.

This rendition involved no black sites and was clearly driven by a
desire to get the target quickly before a court. Also unlike renditions
of the Bush-era, the target wasn't even a terror suspect; rather, he
was suspected of fraud. But in a troubling intimation of the last
administration, accusations of torture hover menacingly over the case.
According to papers filed by his lawyers, Azar was threatened,
subjected to coercive interrogation techniques and induced to sign a
confession. Azar claims he was hooded, stripped naked (while being
photographed) and subjected to a "body cavity search."

On a ride to the infamous Bagram air base in Afghanistan -- site of
the torture-homicides involving U.S. interrogators exposed in the
Oscar-winning documentary Taxi to the Dark Side
-- Azar contends that a federal agent pulled a photograph of Azar's
wife and four children from his wallet. Confess that you were bribing
the contract officer, the agent allegedly said, or you may "never see
them again." Azar told his lawyers he interpreted that as a threat to
do physical harm to his family.

Azar alleges that on arriving at Bagram he was shackled to a chair
in an office for seven hours and not allowed to move. Then in the midst
of a cold rainstorm he was taken to an unheated metal shipping
container converted to use as a cell. The cell was brightly lit and
although the outside temperature approached freezing, he was given only
a thin blanket. He also claims that he was not permitted to sleep
during his confinement at Bagram, which lasted over a day. Then he was
told he was going to take a plane trip. His handlers would not tell him
where he was going. He feared he was being dragged to Guantanamo, there
to be "disappeared" and tortured. How else, he thought, could he
explain the absence of Afghan authorities, the hooding and other
techniques?

Before boarding the Gulfstream, Azar was shackled, blindfolded and
had earphones placed on his head. Occasionally, the earphones and
blindfold were removed so that his interrogation by FBI agents could
continue. The 16-hour flight was broken by a refueling stop in Tbilisi,
Georgia -- which has long served as a pit stop for rendition flights
into and out of the Afghanistan-Pakistan region. During the flight,
according to papers filed by the Justice Department, Azar confessed to
the charges against him--essentially that he was aware of corrupt
payments made to a U.S. government contract agent to help Sima
International secure or extend its contracts with U.S. government
agencies.

Azar's attorneys are now seeking to suppress that confession,
arguing it was secured by torture and that Azar, a native Arabic
speaker, did not understand English well enough to have given it.

The department acknowledges the accuracy of many of Azar's specific
claims, but it denies that Azar was ever threatened with a photograph
of his family or that he was malnourished. It heatedly argues that the
characterization of these techniques as "torture" is "hyperbolic."

The Justice Department insists that even the decision to subject
Azar to sensory deprivation for the duration of his flight to America
was "according to accepted procedure for the transport of prisoners by
airplane" and that it was "done solely for the safety of the prisoners
and the FBI agents accompanying them." The decision to use those
techniques is attributed to FBI Special Agent Nicholas Zambeck, who
heads the Bureau's hostage rescue and negotiation team in Afghanistan.
These procedures--particularly the blindfolding and shackling --
correspond to standard Bush-era enhanced interrogation techniques,
which President Obama declared banned immediately on his arrival in
office.

A Disproportionate Response?

Renditions conventionally involve seizing a target overseas, often with
the informal consent but rarely with the overt involvement of the
foreign government, and moving him across international boundaries
without observing legal formalities associated with extradition. Under
the Bush administration, rendition typically involved intensive
interrogation using highly coercive techniques or outright torture,
most often at the hands of proxies. By contrast, renditions that
occurred in the Bush 41 and Clinton administrations involved
transferring someone to stand trial on criminal charges--not
"disappearing" a person to a black site or a third country.

But in all three previous administrations, renditions have been
considered a rare technique reserved for dangerous terrorists and
violent drug kingpins. Azar is at worst a secondary figure in a
small-time contract fraud case and is not accused in any way of
terrorism. Why such aggressive and dramatic techniques were used in
connection with the apprehension of a man suspected of a small-scale
white collar crime remains entirely unclear.

Could Azar have been nailed on contract fraud because prosecutors
actually suspected something more sinister but have been unable to make
out a case? Apparently not. In accounts of politically motivated
terrorism, the name "Raymond Azar" does surface--it is the name of the
former Lebanese military intelligence chief, suspected of involvement
in the assassination of Lebanese Prime Minister Rafik Hariri. But that
Raymond Azar--General Azar--has been in prison in Lebanon since 2005
and is unrelated to the construction manager who was nabbed in Kabul.
The Azar who was the target of the rendition effort is a Christian, and
has no prior criminal record and no history of involvement in politics.
Moreover, prosecutors agreed (under some pressure from the court) to
release him into the custody of a local Maronite priest--a step they
would not have taken had he been a terrorism suspect.

The decision to seize Azar in Afghanistan apparently was made in
April 2009, six weeks into the Obama administration. Documents filed by
the Justice Department, however, suggest that plans for it were laid at
least as early as December 2008, before the transition had occurred in
Washington. The Justice Department declined to respond to requests for
information about the identity of the official who authorized the
special operation in Afghanistan to apprehend Azar and Cobos.

"The United States views contract fraud as a very serious matter,"
Public Affairs Deputy Director Gina Talamona told me. She notes that
the prosecution resulted from the work of the International Contract
Corruption Task Force -- uniting the FBI and Justice Department with
the Department of the Army's Criminal Investigation Command and the
Defense Criminal Investigative Service.

And Azar's removal does match in some respects the change that the
Obama team promised. Obama administration officials explained that
renditions would be reserved for unusual cases in which a person's
transfer to face charges under a criminal justice system faced
obstacles that could not be met through extradition or other more
formal processes. They also insisted that renditions would occur for
purposes of holding and charging the targets under law. Azar's delivery
to the United States to bring him to face charges indeed matches
Obama's announced change in the program.

Rendition By Any Other Name

Reeling from the adverse publicity associated with the Bush-era
program, the Justice Department denies that the seizure in Kabul and
forcible transportation of Azar and Cobos should be called a rendition.
"This was a lawful law enforcement transfer consistent with
international law," says Talamona. In papers filed in the court
proceedings, the Justice Department prefers to call the process an
"expulsion."

The Justice Department's papers insist that "defendants were
expelled from Afghanistan, with the permission of the Government of
Afghanistan, based upon outstanding arrest warrants issued by this
Court."

In response to requests for clarification, Talamona states that the
"consent of the Government of Afghanistan was secured through
diplomatic channels, involving the State Department." Rob McInturff, a
State Department public affairs officer, confirmed that U.S. diplomats
were involved in the effort and claims that they secured the Afghan
government's consent. But he refused to disclose who gave the consent,
the specific parameters of the consent given, or even to identify the
specific agency or ministry of the Afghan government from which the
consent was given.

When contacted and asked to confirm whether the government of
Afghanistan had given its permission for the seizure and removal of
Azar and Cobos to the United States, two senior officials of the
Afghanistani Interior Ministry in Kabul insisted in separate interviews
that the ministry had no record of any such request ever having been
made by the U.S. Justice Department, nor did it have any record of
permission having been granted for Azar's removal.

The senior Afghan Interior Ministry officials explained that under
an existing U.S.-Afghan understanding the United States has the
authority to seize any person who constitutes an "imminent threat to
the safety or security of U.S. forces in Afghanistan," but no
unilateral authority to remove such persons from the country. They also
noted that a number of FBI agents are currently on duty with the
Ministry of Interior and have been specially deputized to perform
activities consistent with their training mission. These agents are
not, one official stated, authorized to engage in law enforcement
activities in Afghanistan outside of the scope of that mission. The
United States does have the right, one official stated, to remove U.S.
citizens from the country, which would suggest that no issue existed as
to the removal of Cobos. The Afghan officials also stated that they
"could not rule out" the possibility that someone in the Afghan
government might have given some form of consent in connection with the
seizure of Azar and Cobos, but they expressed skepticism that this was
in accordance with Afghan law.

Generally speaking, the Justice Department's description of the
process as "expulsion" causes legal scholars to wince. As Philippe
Sands, Q.C., an international law professor at London University points
out, an "expulsion" in a case like this would be done by the government
of Afghanistan, and not by agents of the Justice Department acting on
Afghan soil. And Sands stresses that the seizure and removal of Azar
and Cobos on Afghan soil would only be lawful if the consent of the
government of Afghanistan had been properly given.

The Justice Department contends that operations like the one in
Afghanistan are "quite common." A public affairs officer cited five
press releases involving transfer (usually American citizens) from
Indonesia, Mexico and Colombia--all involving "expulsions." However, in
most of these cases, the persons were actually in the custody of the
foreign government and expelled based on a finding that they had
entered the foreign country illegally. They were then transferred to
U.S. custody in connection with the expulsion. Thus none of the
examples cited were close to the facts of the Azar case.

But even if consent were secured in some form from officials within
the Afghan Government, the operation might still be legally ambiguous.
Sands notes a pending prosecution in Milan, Italy, where 26 American
agents, including a diplomat and a military attache, face kidnapping
and assault charges in absentia connected with the United States'
decision to seize a radical Muslim cleric known as Abu Omar off the
streets of Milan and transport him to Egypt. The operation appears to
have been carried out with a "wink and nod" from Italian state security
agents, but without observing the formal extradition rules applied by
Italian law. The U.S. agents whisked Abu Omar off to nearby Aviano Air
Base before loading him on to a Gulfstream jet for a trip that
ultimately landed him in Egypt. For the United States agents, this was
a legitimate national security operation which had been coordinated
with Italian intelligence counterparts. But for Italian prosecutors it
was kidnapping, and for their role in giving the "wink and nod," the
implicated Italian state security agents were charged as co-defendants.
The case is expected to go to a verdict by the end of the summer.

A senior State Department figure involved in Afghanistan policy
noted to me that the United States and Afghanistan have failed to
conclude a status of forces agreement in part because of difficult
unresolved issues surrounding the power of Americans to detain and hold
prisoners on Afghan soil. "The Afghans understandably see this as
impinging on their sovereignty," the U.S. diplomat stated. All of this
underscores the sensitivity of the American-Afghan dealings underlying
the murky Azar case, and explains why--against the backdrop of a
presidential election campaign in Afghanistan--the Americans are
unwilling to identify who gave consent to seize Azar and the Afghans
are unwilling to confirm that consent was given.

Azar's Fate

In any event, U.S. legal precedents coming from bounty-hunting cases
and earlier renditions operations make it unlikely that Azar can
successfully challenge his seizure and removal from Afghanistan, even
if it was improper under local law. Instead, Azar is seeking dismissal
of his indictment on grounds of government misbehavior. His torture
allegations are central to those claims.

An analyst with Human Rights Watch who is expert on renditions
cases, Joanne Mariner, notes that Azar's claims match an existing
pattern of accusations concerning the treatment of prisoners in past
renditions, many of which have now been well documented. "The court
needs to examine, for instance, whether Azar was in fact threatened,
hooded, deprived of food and sleep, left for seven hours in shackles in
a chair," she said. Professor Sands similarly observed after examining
the court papers that he found the allegations "deeply troubling." They
indicate, he explained, "clear violations of international norms on due
process and detainee treatment. The consent of the host state, even
assuming it to have been given, would not appear to provide any sort of
justification, certainly in terms of international legal requirements,
as the English courts have made crystal clear."

The government's indictment claims that in response to a government
sting operation, Cobos agreed to pay and then paid money to a person
posing as a government contracts officer in order to retain or expand
her company's business. It alleges that Azar knew of these actions and
was Cobos's supervisor. But the case also raises strong questions
simply about the allocation of resources. The sums of money involved in
the government action as corrupt are relatively small, amounting to
about $100,000. That's almost certainly a smaller sum than the Justice
Department expended sending a Gulfstream V around the world and
deploying a platoon of FBI agents to Afghanistan for the sting
operation that apprehended the Lebanese business executives.

Another cause for concern: Azar and Cobos were lured to Afghanistan
as targets in a Justice Department sting operation, not invited to come
to Virginia or Washington, D.C., to confer with contract officers--an
easier and more conventional trip. Did Justice Department prosecutors
intentionally avoid the more restrictive rules of U.S. law by luring
Azar to Afghanistan, where he could be held and interrogated at Bagram
and subjected to harsh methods that could never be applied in the U.S.?

Azar's allegations will now go before United States District Court
Judge Gerald Bruce Lee, who must test Azar's claims to have been
tortured and act on his motion to dismiss the charges and suppress his
confession. Motions of this sort are generally reckoned a long shot, as
most judges prefer to have everything fully developed at trial. But at
a 90-minute hearing held on July 17, Judge Lee indicated his discomfort
with the prosecutors' conduct, and specifically with their failure to
supply the defendants with background information about the capture and
interrogation of Azar and Cobos in Afghanistan. He asked three
government prosecutors who were present if they were familiar with the
Stevens case before Federal Judge Emmett Sullivan in which a special
prosecutor has been appointed to investigate potential criminal
misconduct by the prosecutors. He insisted that the prosecutors
immediately turn over to the defendants their records, including
interview notes and any exculpatory materials.

Whatever happens to Azar and his co-defendant, some intriguing
questions hover over this case. Does it tell us how the rendition
program is being reshaped? Is the Obama team eliminating Bush era
abuses and bringing the program back to its Clinton-era criminal
justice roots? Or will the program continue to be plagued by charges of
torture?

Further

With the toxic Bibi circus in town - cue talk of "tentacles of terror" - find hope in the extraordinary Combatants For Peace, a joint effort by Israeli and Palestinian veterans of violence who've laid down their guns to fight for peace. Led by a former IDF soldier and Fatah militant who both lost daughters to the conflict's "unrightable wrongs," they insist on the need to "hear what is painful" and "talk to your 'enemies'...Partners for peace always exist - you only have to look for them."